Ward v. Department of Agriculture et al
Filing
39
ORDER signed by Judge Kimberly J. Mueller on 3/22/2012 ADOPTING 30 Findings and Recommendations; DENYING 22 Motion for Summary Judgment. (Michel, G)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CHERE D. WARD, an individual,
Plaintiff,
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No. CIV-S-10-0376-KJM-KJN-PS
v.
TOM VILSAK,1 SECRETARY DEPT.
OF AGRICULTURE,
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Defendant.
ORDER
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On December 2, 2011, the magistrate judge filed findings and recommendations
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(“F&Rs”; ECF No. 30), which were served on the parties and which contained notice that any
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objections to the findings and recommendations were to be filed within fourteen days. On
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December 16, 2011, defendant Tom Vilsack filed objections to the findings and
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recommendations (ECF No. 32), which have been considered by the court.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule
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304, this court has conducted a de novo review of this case. Having carefully reviewed the file,
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The spelling of defendant’s name in the caption of this case reflects the spelling
adopted by plaintiff in her complaint.
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the court finds the findings and recommendations to be supported by the record and by the
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proper analysis. However, for the sake of clarity, the court addresses some of defendant’s
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objections to the Findings and Recommendations (“F&Rs”).
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First, defendant argues that while the magistrate judge appropriately described the
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“two-step inquiry” to determine whether plaintiff was qualified for the position in question, the
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magistrate judge erred in finding that “defendant focused solely on the second step (i.e., whether
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plaintiff could perform the essential functions of the position).” (Objection at 2.) The F&Rs
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provided, in pertinent part: “The court must first examine whether the individual satisfies the
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‘requisite skill, experience, education and other job-related requirements’ of the position. The
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court then considers whether the individual ‘can perform the essential functions of such position’
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with or without a reasonable accommodation.” (F&Rs at 15 (citations omitted).) Here, the
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magistrate judge determined that defendant’s argument focused “solely on the second step” of
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the analysis, namely, “plaintiff’s inability to perform the ‘essential functions’ of the position.”
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(Id. at 17.) In arguing that defendant actually raised arguments under both the first and second
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steps of the requisite two-step inquiry, defendant cites the recently-decided case of Johnson v.
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Bd. of Trustees of Boundary Cnty. Sch. Dist. No. 101, 2011 WL 6091313, at *2 (9th Cir. Dec. 8,
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2011), as well as Bates v. United Parcel Serv., Inc., 511 F.3d 974, 990 (9th Cir. 2007).
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Defendant’s objection is not well-taken.
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Defendant’s moving papers argued that plaintiff lacked experience for the job in
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question, but a review of those papers confirms defendant never framed its argument as under
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the “first” step of the applicable two-step inquiry. Further, neither Johnson nor Bates supports
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defendant’s current position that defendant’s focus on plaintiff’s general lack of experience fits
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within the “first” step of the inquiry. For instance, in Johnson, the plaintiff was denied a renewal
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of her teaching position because she failed to obtain a specific “teaching certificate” that she had
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been contractually required to obtain. Johnson, 2011 WL 6091313, at *1-2. The lack of a
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“teaching certificate” was analyzed as part of the “first” step of the two-step inquiry. Id.
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Similarly, in Bates, the “first” step of the two-step inquiry involved analysis of whether the
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plaintiff met the job’s “threshold seniority requirements,” completed “an application,” was at
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least 21 years old, possessed “a valid driver’s license,” and had a “clean driving record by UPS’s
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local standards.” Bates, 511 F.3d at 982-83, 990 (framing these requirements as “prerequisites to
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employment” and the first step of the two-step inquiry). Thereafter, the court in Bates proceeded
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to the “second” step and analyzed whether the plaintiff could perform the job’s “essential
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functions” of being able to “communicate safely” and being able to “drive safely.” Id. at 991.
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Neither Johnson nor Bates addressed a sweeping “lack of experience” similar to the one
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defendant urged in this case, let alone in the context of the “first step” of the inquiry.
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Here, in arguing for summary judgment, defendant never identified anything as
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concrete as a missing “teaching certificate” or “driver’s license” — or even a finite time period
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of required “experience” — as being a specific prerequisite to the job in question. See Johnson,
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2011 WL 6091313, at *2; Bates, 511 F.3d at 990. Instead, defendant allegedly rejected
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plaintiff’s application because defendant’s decision-maker ultimately determined that “five
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months and two weeks over a 13-year period” was insufficient experience. (Objections at 2-3.)
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Defendant’s rather amorphous determination that a certain level of experience was, on balance,
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insufficient, is unlike the “step one” determinations made in Johnson and Bates where mere
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eligibility for the jobs in question expressly required specific certifications or licenses. See
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Johnson, 2011 WL 6091313, at *2; Bates, 511 F.3d at 990. Accordingly, the court is
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unpersuaded by defendant’s objection that the findings and recommendations improperly framed
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defendant’s experience-based arguments as within the “second” rather than “first” step of the
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requisite analysis.
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Second, defendant objects to the magistrate judge’s finding that “a genuine issue
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of material fact exists regarding whether plaintiff can perform the essential functions” of the job
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in question. (Objections at 4-5.) Defendant states that the magistrate judge improperly
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“disregarded the evidence of District Ranger Angela Parker,” who declared that the job in
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question “entailed working around logging equipment, working alone, and working on steep,
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rocky ground.” (Id. (quoting Declaration of Angela Parker, ECF No. 22-4, ¶ 11).) This
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objection also is not well-taken.
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It cannot be said that the magistrate judge “disregarded” evidence from Angela
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Parker. Instead, the magistrate judge specifically considered the list of job duties Parker
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described, but ultimately determined it was unclear whether the list constituted central or “core”
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job tasks rather than more marginal job duties. (F&Rs at 19-21.) The findings and
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recommendations explain that defendant offered no evidence as to the amount of time spent on
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the job performing any of these duties, and no evidence as to the time to be spent on these job
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duties relative to other job duties. (Id. at 20 (explaining that defendant did not clarify whether
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the listed tasks “would be performed infrequently” relative to other tasks).) Defendant has not
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shown that the magistrate judge erred with respect to his determinations regarding the existence
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of questions of fact regarding the job’s “essential functions.”
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Finally, defendant objects to the magistrate judge’s finding “that defendant’s
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raising ‘safety issues’ as its legitimate, nondiscriminatory reason for its decision . . . is
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pretextual.” (Objection at 6 (citing F&Rs at 35).) Defendant also objected on grounds that “it is
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incongruous that an employer who is considering hiring an individual under Schedule A hiring
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authority based on that individual’s disability would not take the disability into consideration
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. . . .” (Objection at 7.) As with defendant’s other objections, this objection is not well-taken.
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Defendant’s objection lumps the “legitimate nondiscriminatory reason” prong of
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the analysis together with the “pretext” prong, then takes issue with the magistrate judge’s
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finding as to “pretext.” (Objection at 6-7 (citing cases analyzing whether defendants met their
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burden of stating legitimate nondiscriminatory reasons for an employment decision).) The
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magistrate judge properly found that defendant’s proffered reason of plaintiff’s “safety issues”
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was indeed a legitimate, nondiscriminatory reason for not hiring plaintiff, and proceeded to
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analyze whether plaintiff could demonstrate that such reason was pretextual for summary
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judgment purposes. (F&Rs at 33-34.) The magistrate judge found that the evidence
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demonstrated a genuine dispute of fact as to whether defendants’s focus on “safety issues” was
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pretextual. (Id.) Contrary to defendant’s framing, the magistrate judge did not find that
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defendant’s focus on safety issues “is” necessarily pretextual as a matter of law. (Objections at
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6.) Instead, the magistrate judge considered specific evidence, and properly found that questions
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of material fact existed as to whether defendant’s use of the term “safety issues” was a pretext
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for “hearing ability” in this case. (F&Rs at 35-36.) Further, the magistrate judge did not
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determine that defendant committed any wrongdoing merely by taking plaintiff’s disability “into
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consideration” as part of considering whether to hire under Schedule A authority. (Objections at
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7.) The findings and recommendations do not suggest that defendant was wrong simply to take
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plaintiff’s hearing ability “into consideration,” and they do not suggest that “mere consideration
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constitutes pretext.” (Id.) Instead, as the findings and recommendations explain, questions of
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fact exist regarding whether, after considering plaintiff’s hearing ability, defendant potentially
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“summarily rejected plaintiff’s application even though [plaintiff] may have been capable of
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performing the essential functions of the position with a reasonable accommodation.” (F&Rs at
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35 (emphasis added).) The findings and recommendations identify particular evidence
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suggesting the possibility of such a summary rejection of plaintiff’s application. (Id. at 35-36.)
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Defendant has not shown that the magistrate judge erred with respect to his determinations
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regarding pretext.
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Accordingly, IT IS ORDERED that:
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1. The Findings and Recommendations filed December 2, 2011, are ADOPTED;
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and
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2. The motion for summary judgment (ECF No. 22) filed by defendant Tom
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Vilsack, Secretary of Department of Agriculture, is denied.
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DATED: March 22, 2012.
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UNITED STATES DISTRICT JUDGE
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